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  • Can Appellate Court rely on counsel’s personal record of proceedings?

    Can Appellate Court rely on counsel’s personal record of proceedings?

    Facts of the case:

    The Appellant was arraigned before the Federal High Court, Port Harcourt Court, on a 6 count charge of conspiracy, forgery; and Obtaining Money under False Pretense, in that between January and December 2006, the Appellant conspired with others (now at large), to obtain money under false Pretense, by collecting the sum of N25,356,000.00 (Twenty Five Million, Three Hundred and Fifty Six Thousand Naira) from commercial motorcycle operators (Okada), by holding out himself as the accredited revenue collector by the Rivers State Board of Internal Revenue; amongst other offences.

    He was alleged to have committed an offence contrary to, and punishable under Section 2 (a and b) of the Miscellaneous Offence Act, Cap. M17, Laws of Federation of Nigeria, 2006.

    The trial Court found the Appellant guilty and convicted him of the offences and sentenced him to 7 years imprisonment on each of the count, to run concurrently.

    ?Dissatisfied, the Appellant lodged an appeal to the Court of Appeal.

    Issue for determination:

    Whether failure of the trial Judge to include questions asked during Examination-in-Chief, Cross-Examination and Re-examination in the Record of Proceedings is a breach of Section 36(7) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and the Appellant’s right to fair hearing/trial, and if so, is the entire proceeding before the Court is a nullity?

    Counsel’s Argument:

    The Appellant answered this issue in the affirmative and argued that the Courts have a duty to record proceedings which is regarded as a right towards fair hearing as enshrined in Section 36(7) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

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    It was the submission of the Appellant that the trial Judge failed to record all the questions asked during examination-in-chief and cross-examination during proceedings, the trial Judge only recorded answers to the questions asked, this the Appellant challenged by an affidavit filed on 24 August 2020.

    The Appellant also submitted that the trial Judge omitted significant answers given by PW2 at Pages 279 -280 and 355 of the Record of Appeal.

    The Appellant relied on Anyanwu v. State (2002) LPLER-517(SC), and Oxford Advanced Learner’s Dictionary, 7th Edition Page 1364 to define the word “Scrupulously”, which means careful about paying attention to every detail and careful to be honest and do what is right.

    He said it is clear that the trial Judge did not scrupulously keep record of the proceedings. Relying on Candide-Johnson v. Edigin (1990) LPELR-20108(CA), the Appellant submits that the failure of the trial Judge to include questions asked during examination-in-chief and cross- examination in the Record of Proceedings is a breach of Section 36 (7) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and the Appellant’s fair hearing and as such the entire proceeding before the Court is a nullity.

    The Appellant urged the Court to resolve this issue in his favour.

    Decision of the Court and

    reason:

    The court reiterated that the complaint of the Appellant is that what he took down in the course of the proceedings at the trial Court is not in the Record of Appeal.

    Does the Court work with Counsel Record or notes or what the Court below has in its record, which was duly transmitted by the Registrar of the Court? Their lordships relied on Yamo Nig Ltd v. Access Bank (2017) where the court had cause to say thusly: “Now, from the grounds supporting the application reproduced earlier, it is clear that the Applicants are challenging the Record of Proceedings. Parties are free to contend at one time or the other that the Record of Proceedings is not a true reflection of what actually transpired in Court.

    “This is usually referred to as a challenge to the Record of Proceedings and at that point, the party who raises such objection is duty bound to prove his contentions. It must however be noted that there exists in law, a presumption of regularity in favour of the Certified Record of Proceedings transmitted to this Court by the parties.

    “Any party challenging such Record of Proceedings is duty bound to prove such allegations. In other words, it is the sole duty of the party contending that the Record of Proceedings is not a fair record of what happened at the lower Court to formally impeach same.’’

    The Court was therefore reluctant to use the additional records which are simply the notes of Counsel as record in determining this appeal when the Record of Appeal has not been impeached according to law. And furthermore, the judgment cannot be a nullity on the basis of a record which has not been impugned and which is presumed correct and duly certified.

    Outrightly, the Appellant left out a significant step necessary in the process of challenging a Record of Appeal which is to serve the Court below.

    It was observed that the Appellant proceeded to compile and file Additional Record from his notes and not from the Registrar of the Court below. Even in doing so, he emphasised on the recording of questions asked as witnesses were taken.

    To learned Counsel, the trial Judge must record every question and answer given. The notes or recording of a Judge could be a summary of what transpired and not necessarily a word for word recording of the proceeding, the Court so held.

    The case of Udo v. State (2006) LPELR-3298 (SC), was relied upon, where the Apex Court in considering a similar complaint held: “A Judge is not enjoined to record every little detail of what transpires in a proceeding, whether criminal or civil.

    “The important thing is to record all those salient and relevant proceedings that are necessary to lead to a just determination of a case. The crucial requirement is substantial justice in the real sense of it, so much so that no miscarriage of justice is occasioned.

    “I agree that in a criminal case such as this, where the life of a human being is in jeopardy and at stake, a Judge cannot be too careful in his adjudication or compliance with the provisions of the law, but wasting time on procedure that does not lead to miscarriage of justice is not advocated.”

    This issue was resolved against the Appellant.

    Representation:

    Clifford N. Chuku – for the Appellant

    A.A. Ewas – for the Respondent

    Reported in (2021) Modern Weekly Law Reports (MWLR) pt 40, p 1681-1783. Modern Weekly Law Reports (MWLR is a publication of Doyen Law Publishers Limited.

  • ‘Church leaders need prayers, counsel’

    Christian leaders need the prayers and godly counsel of members, General Overseer of Christ Word Gospel Church, Pastor Moses Olanrewaju-Bankole, has stated.

    He urged Christians to continue to support their leaders with their prayers and godly counsel.

    Olarenwaju-Bankole, who spoke with our correspondent recently, said the battle against the church is fierce, requiring Christians supporting their generals.

    He said the church will win with godliness and righteousness.

    He lamented the wide condemnation of church leaders by Christians in the open, which, according to him, will keep the wounded generals down for enemies to prevail over them.

    He noted that Christians of today are not mature.

    “When their soldiers get wounded, they kill their soldiers the more.

    “Any little rumour about any church leader, Christians are the ones promoting it more even on social media networks.

    ‘’The more the soldiers are getting more wounded on daily basis, who will now do the work and lead the good fight of faith?”

    He added Nigeria will not be a place to live in if not for these men of God who have continued to preach peace, love and togetherness.

    The cleric asserted that church leaders are mortals and need rebuke when they err, stating, “we should stand and remain with them until they recover.”

    He commended efforts of God’s generals who have continued to draw the hands of God with their prayers and urged them to continue until Nigeria takes its pride of place among the comity of nation.

  • Two men docked over cell phone theft

    Two men, Abdulrafiu Shittu and Mohammed Idris, were on Wednesday arraigned in a Karmo Grade 1 Area Court, Abuja, for alleged joint act and stealing.

    The prosecutor, Zannah Dalhatu, told the court that one Abubakar Yahaya, of Wuse Zone 5, reported the matter at the Utako Police Station Abuja, on March 5.

    Dalhatu said that the complainant alleged that on that same day, the accused persons stole his Samsung A3 phone valued at N140, 000.

    He said that during police investigation, the accused persons were arrested.

    The prosecutor said that the accused persons could not give any satisfactory explanation of themselves.

    Dalhatu also said that the offence contravened Sections 79 and 288 of the Penal Code.

    The defendants, however, pleaded not guilty to the charge levelled against them.

    The Counsel to the accused persons, Isaac Mathew, applied for their bail, and assured the court that the defendants would not jump bail.

    The judge, Alhaji Abubakar Sadiq, granted the accused N50, 000 bail each and one surety each in like sum.

    Sadiq said that the sureties must reside within the court’s jurisdiction and adjourned the case till March 30, for further hearing.

  • Unwelcome counsel

    Unwelcome counsel

    •We don’t need EU chief’s advice on devaluation of Naira

    ONCE again, Nigeria is receiving external counsel that is most certainly unwelcome as regards her economic policies, particularly the management of the Naira. In an interview with the News Agency of Nigeria (NAN), the Head of the Trade and Economics Section of the European Union, Mr Fillippo Amato, advised the Federal Government to devalue the Naira as part of measures to overcome our economic recession. Of course, his prescriptions for our economic recovery are no different from what we have been used to hearing over the years from patronising foreign experts.

    In Mr Amato’s view: “To come out of recession, the country has to take brave decisions, regardless of how unpopular they may be such as fully and effectively devaluing the Naira. Devaluing the Naira is a measure, which will finally reassure investors and attract new capital to the country. At the same time, it will further reduce imports, thereby removing artificial foreign exchange restrictions and removing any potential waste of scarce resources”. It is instructive that this counsellor wants a popularly elected government to arrogantly disregard public opinion in accepting and implementing his advice. In any case, this is the kind of advice from the Bretton Woods institutions that led to the ever increasing deterioration in the value of the Naira from a position of near parity with currencies like the US dollar and British pound in the pre-Structural Adjustment Programme (SAP) era to the veritable exchange rate disaster we have on our hands today.

    But then, what does Amato mean by advocating “fully and effectively devaluing the Naira?”  Prior to June this year, the Central Bank of Nigeria (CBN) had pegged the exchange rate at 197-199 Naira to the dollar and maintained stringent capital control policies. However, it has since jettisoned its fixed rate policy and adopted a flexible and multiple market model that allows the Naira to float against the dollar and its exchange rate is largely market-driven. The aim of this major policy shift was to encourage and assure investors as well as enabling local businesses better access to foreign exchange for the importation of raw materials and industrial machinery.

    Consequently, the current official exchange rate of the Naira is N320 to the dollar while it is about N465 at the parallel market. Earlier, in November, 2014, the Naira was devalued from N155 to N168 to the dollar. Again, in February, 2015, it was further devalued to N199 to the dollar. In none of these cases of devaluation were the objectives of attracting substantial foreign investment, achieving improved trade balance or even appreciably bridging the gap between the official and parallel markets met. What Amato  is apparently advocating is the removal of all capital controls and completely abandoning the fate of the Naira to so-called market forces. No responsible government should accede to that in a situation where the demand for foreign exchange far outstrips supply. Surely, some non-market-determined variables must unavoidably be considered in determining the utilisation of the severely scarce foreign exchange available.

    The crux of the problem is the drastic crash in the international price of crude oil, which provides over 80 per cent of Nigeria’s export earnings. Matters are worsened by the crippling of the country’s crude oil production capacity as a result of the Niger Delta insurgency.

    As Nigeria intensifies efforts to diversify her revenue sources through viable agriculture and solid minerals sectors, for instance, she must necessarily continue to maintain regulatory controls that vigorously curtail the frivolous imports that so badly hurt the economy as well as ensure the utilisation of available foreign exchange in sectors most critical for national growth and development.

     

  • Kano court grant bail to woman accused of murder

    Kano court grant bail to woman accused of murder

    A female, Mrs Gloria Okocha 31 years old, who crushed a woman identified as Mrs Remi Nwokolo to death has been granted bail by a  Kano chief magistrate court.

    Mrs Okocha a member of the Living Faith church, Kano was dock before the court on a two count charge namely causing death by dangerous driving contrary to section 18 of RTA and driving without due care and attention contrary to section 21 of RTA.

    According to the charge sheet, on 22nd of July 2016 at about 18oohrs, Gloria Okocha a resident of Painsau quarters Kano dangerous and carelessly drove one vehicle Toyota Matrix with plate no RKD 823CP ash in color along Nguru road, Sabon Gari, Kano  opposite Word of Faith church, police information said.

    The FIR read out to the accuse in court further alleged that, Mrs Gloria Okocha excused one Remi Justice and discussed with her, after separation the deceased  turn and left. While the accuse drove her car and hit the late Remi

    Nwokolo by the back side, as result she sustained injuries all over her body.

    “She was rushed to Aminu Kano Teaching hospital where she died while receiving treatment, you are thereby charge to court for the above offence” the FIR said.

    The accused person deny the  allegations slammed against her before the court, she told the court that all that was stated in the charge sheet was not true.

    The accuse through her counsel, barrister G I . Makoli apply for the court to admit her into bail, a request which was granted by the court.

    The presiding magistrate of court 15 sitting in Nomans- land Kano, chief magistrate Mukthari Dandago ordered that the accuse be release on bail in the sum of N50.000 with one reliable surety in like sum.

    Police prosecutor, sergeant Jacob Yaduma applied for the matter to be adjourned to another date for further mention, the case was adjourned to August 4th for mention.

     

  • Drama as Ondo deputy governor’s counsel storms out of impeachment panel’s sitting

    There was drama yesterday at the sitting of the seven-man panel set up by the Ondo State Chief Judge, Olasehinde Kumuyi, to investigate the allegations leveled against  the deputy governor of the state, Ali Olanusi, when his legal counsel, Dr. Benson Enikuomehin stormed out of the venue on the ground that Olanusi was not properly served notice of impeachment.

    Enikuomehin, who claimed to have appeared on protest on behalf of Olanusi, launched into an arguement with counsel to the state Assembly, Dayo Akinlaja, SAN,  asking that the panel headed by Olatunji Adeniyan should not go ahead with sitting since the deputy was not properly served.

    The defendant’s counsel noted that he appeared at the panel through an information giving to him by the son of Olanusi in order to make a complaint on why the panel could not sit on such issue.

    He said services on a matter of this nature is expected to be effected on the defendant, adding that Olanusi is out of jurisdiction and there was no way, they can serve a man who is not around.

    According to him, “You can’t  go ahead with a proceeding just because you pasted the letter on the wall of his quarters whereas the alleged man is out of the country for a medical check up and which they tender a document to prove that he was going for such trip as far as April 17. I contended that there was no way a service could be effected aside from the day when the commencement of the impeachment started.

    “The impeachment process started on April 21, when they said the lawmakers met, the second day, they ask the Chief judge to set up a panel, on April 23, the CJ set up the panel and on the April 24, the panel began sitting. I am sure before the end of the day the panel will reel out result.

    “Meanwhile, they is an order of injunction stopping the governor from using the instrumentally of the state from removing the deputy governor from office, that injunction was granted and it has been served on the governor. The counsel to the plaintiff, Akinlaja, now purportedly gave me a copy of the allegation but I told him, I am not deputy governor and the defendant must be served, why are they in hurry? Since we have not been served, what are we coming to discuss in the court?

    However, counsel to the tate Assembly, Akinlaja, said the Speaker and members of the Assembly have done the needful to ensure that the notice of impeachment was properly served on the embattled deputy governor.

    He revealed that the acclaimed letter written by the deputy governor to the governor concerning Olanusi’s medical trip abroad revealed that the deputy governor was expected to leave the country on April 27, saying with this, it clearly shows that he was yet to leave the country.

    Akinlaja said: “It was not proper for the counsel to the defendant to have claimed that information given to him by somebody indicated that the deputy governor has not been served prerequisite notice. The deputy governor was initially served with the notice of application as prescribed by the constitution. The attention of the panel was drawn to the fact that the deputy governor has a benefit for second service by vitual of the fact that the notice of the allegations was sent alongside the summon that was issued by the panel set up to conduct the allegation.

    “It is interesting that the deputy governor does not claim ignorance that this panel was to commence sitting today (yesterday) and that was why he was able to get a legal practitioner to represent him.

    “The deputy governor is only trying to evade his obligation under the constitution with respect to the allegation of gross misconduct made against him. We convinced the panel that there was no sincerity that service has not been effected.

    “The argument of his lawyer was that the deputy governor was not in the country but we succeeded in bringing it to the attention of the panel that Olanusi whose counsel was claiming not to be in the country has written to the state governor that he would be embarking on a medical trip on April 27. This is to show that the deputy governor is still within the country at this moment but only trying to shy away from his responsibilities.

    Adeniyan, however ruled that there was no basis for the deputy governor to have claimed that he was not served.He thereafter ordered the continuation of the impeachment process.

    At the sitting, the state Assembly presented the Chief of Staff to Governor Olusegun Mimiko, Dr. Kola Ademujimi and the Permanent Secretary in the office of the deputy governor, Mr. Kehinde Temikotan, as witnesses.

  • Commissioner counsels students on good conduct

    Commissioner counsels students on good conduct

    Indigenes of Ogun State in higher institutions of learning have been admonished to let the spirit of ‘omoluabi’ be their guiding principle wherever they find themselves.

    In addition, they were enjoined to refrain from all acts that could tarnish the image of both their families and the state in general.

    Commissioner for Education, Science and Technology, Barrister Segun Odubela gave the charge while receiving an award of “OSAN icon of nation building” from Oduduwa Student’s Association of Nigeria ‘OSAN’ in his office in Abeokuta.

    The Commissioner, who noted that most vices now ravaging the country are usually perpetrated by the youths, advised the students to always remember the homes they left behind and be mindful of the company they keep. He added that the state government will continue to support students of the state in institutions of higher learning.

    “Your welfare will remain sacrosanct in the life of the present administration. Governor Amosun holds education in high esteem. He will continue to do all that are necessary to make life worth while for you,” Odubela said.

    Earlier in his address, the secretary general of OSAN, comrade Ayano Adeola described the commissioner as a distinguished leader whose contribution to the educational development in Ogun State cannot be over emphasised.

    “It is gratifying to note that the sincere and nationalistic disposition of our amiable recipient in delivering his mandate to improve qualitative education, service delivery in the education sector, enlightenment, commitment, effectiveness, dedication, leadership and genuine service delivery for all has further endeared you to us,” he said

    Meanwhile, Odubela has commended authorities of public secondary schools in the state for contributing to the smooth conduct of the second term unified examination ended recently.

    The commissioner gave the commendation while performing symbolic presentation of results sheets to pupils attending public secondary schools in Abeokuta.

    The commissioner, who noted that the unified examination has come to stay, urged parents and guardians to always monitor their wards, especially during the holidays.